Subject: OAR 165-001-0015 is proposed for amendment to update
the method by which a person subject to a penalty under ORS 260.232 or ORS
260.995 will be notified of that penalty and to require that the notification
include notice that a political committee may be represented by any officer
identified in the most recent statement of organization filed with the filing
officer.

OAR 165-001-0016
is proposed for amendment to require an individual requesting a contested case
hearing in person or by telephone to submit to the Secretary of State Elections
Division a signed Hearing Request Form. Additionally the rule is proposed for
amendment to provide that if a person fails to indicate their preference for
the type of hearing to be conducted, the hearing will be held by telephone.

OAR 165-001-0025
is proposed for amendment to clarify the deadline to request a hearing.

OAR 165-001-0034
is proposed for amendment to incorporate references to a Hearing Request Form
when an individual is submitting notarized testimony in lieu of a contested
case hearing.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-001-0015

Notice of Opportunity for Hearing

When the Secretary of State proposes to impose a civil
penalty or find a violation of an election law, or both, under ORS 260.232 or
260.995, the Secretary of State shall cause a notice to be served on the
person(s) subject to the penalty. For a violation under ORS 260.232 the notice
shall be served by first class mail; for a violation under ORS 260.995 the notice
shall be served by certified mail The notice shall include:

(1) A statement of the person’s right to a hearing
before an Administrative Law Judge with the Office of Administrative Hearings.

(2) A statement that if the person desires a hearing,
the agency must be notified within the number of days provided by statute from
the date of receiving the notice.

(3) A statement of the authority and jurisdiction under
which the hearing is to be held.

(4) A reference to the particular sections of the
statutes and rules involved.

(5) A short and plain statement of the matters asserted
or charged as a violation.

(6) A statement of the amount of penalty that may be
imposed.

(7) A statement that the person may be represented by
counsel at the hearing.

(8) If the person is an agency, corporation or an
unincorporated association, that such person must be represented by an attorney
licensed in Oregon.

(9) If the person is a political committee subject to a
civil penalty under ORS 260.995, that person may be represented by any officer
identified in the most recent statement of organization filed with the filing
officer. “Officer” means any person identified as a director on the most recent
statement of organization for a political committee.

(10) A statement that the record of the proceeding to
date, including the agency file or files on the subject of the contested case,
automatically become part of the contested case record upon default for the
purpose of proving a prima facie case.

(11) A statement that the person against whom a penalty
may be assessed need not appear in person at a hearing held under ORS 260.232
or 260.995, but instead may submit written testimony and other evidence, sworn
to before a notary public, to the Secretary of State for entry in the hearing
record. Such documents must be received by the Secretary of State not later
than three business days prior to the hearing as provided by ORS 260.232(6) and
260.995(5).

(12) A statement that unless precluded by law, informal
disposition may be made of any contested case by stipulation, agreed
settlement, consent order or default.

(1) If a party wishes to request an in-person or
telephone hearing to contest the allegations in the charging document, they
must submit to the Agency a signed Hearing Request Form and an “answer,” to the
allegations in the charging document not later than the deadline to request a
hearing stated in the charging document.

(a) The answer must include an admission or denial of
each factual matter alleged in the charging document and a statement of each
relevant defense to the allegations, including any relevant mitigating
circumstance that may apply and indicate specifically what facts or
transactions the mitigating circumstance applies to.

(b) A general denial is not sufficient to constitute an
answer.

(c) The person must choose whether they want the
hearing by telephone or in-person. If no choice is indicated on the form, the
hearing will be held by telephone.

(d) Any evidence of a mitigating circumstance or other
relevant evidence may be submitted with the answer as exhibits.

(2) An answer not including the information required by
this rule may be disregarded and a notice of default may be issued in
accordance with OAR 165-001-0025 as if no answer had been filed.

(3) Except for good cause shown to the administrative
law judge, factual matters alleged in the charging document and not denied in
the answer will be deemed admitted by the party.

(4) The failure of the party to raise a mitigating
circumstance in the answer is a waiver of such mitigating circumstance.

(5) The party bears the burden of proof to show that
all or part of the penalty should be mitigated based on a mitigating
circumstance.

(6) Any new facts or defenses alleged in the answer
will be deemed denied by the Agency.

(7) Evidence will not be taken at the contested case
hearing on any factual or legal issue not raised in the charging document or
the answer as filed.

(8) The Secretary of State hereby adopts by reference
and designates the SEL 853 as the Hearing Request Form to be used to request an
in-person or telephone hearing to contest campaign finance violations.

(9) The Secretary of State hereby adopts by reference
and designates the SEL 852 as the Hearing Request Form to be used to request an
in-person or telephone hearing to contest non-campaign finance violations.

(1) When a party has been given an opportunity to
request a hearing and fails to request a hearing in writing within the
specified time, or having requested a hearing fails to appear at the specified
time and place, the agency shall, subject to section (2) of this rule, enter an
order by default which supports the agency action.

(2) The time provided by statute to request a hearing
under ORS 260.995 is calculated from the delivery date indicated on the certified
letter’s postal confirmation. If the certified letter is refused or left
unclaimed at the post office, the time shall be calculated from the date the
post office indicates it has given first notice of a certified letter. If the
certified card is not returned to the Secretary of State by the United States
Postal Service (USPS), the Secretary shall use the date recorded on the
official USPS website utilizing the Track and Confirm delivery service.

(3) The time provided by statute to request a hearing
under ORS 260.232 is 20 calendar days after the service date on the charging
document.

(2) An order adverse to a party may be issued on
default only if the agency record demonstrates a prima facie case justifying
the order. The Administrative Law Judge will declare a party to be in default
if the party which requested the hearing does not appear within 15 minutes of
the time set for the hearing, unless the party gives notice of a reason for the
inability to appear at the designated time and requests and receives a
continuance. A continuance shall be granted only if the reason for the
inability to appear is beyond the reasonable control of the party.

(3) The prima facie record upon default may be made at
a scheduled hearing on the matter, or, if the notice of intended action states
that the order will be issued or become effective upon the failure of the party
to timely request a hearing, when the order is issued.

(4) The record may consist of oral (transcribed,
recorded, or reported) or written evidence or a combination of oral and written
evidence. When the record is made at the time the notice or order is issued,
the agency file may be designated as the record. In all cases, the record must
contain substantial evidence to support the findings of fact.

(5) When the Administrative Law Judge has set a
specified time and place for a hearing and the party subsequently notifies the
agency or the Administrative Law Judge assigned to the case that the party will
not appear at such specified time and place, the agency may cancel the hearing
and follow the procedure described in subsections (2), (3) and (4) of this
rule.

(6) When a party requests a hearing after the time
specified by the agency, but before entry of a final order by default, or, if a
final order by default is entered, on or before 30 calendar days after entry of
the order, the agency may accept the late request only if the cause for failure
to timely request the hearing was beyond the reasonable control of the party.
In determining whether to accept a late hearing request, the agency may require
the request to be supported by an affidavit and may conduct such further
inquiry, including holding a hearing, that it deems appropriate. The agency
shall enter an order granting or denying the request.

(7) When a party requests a hearing after entry of a
default order, the party must file the request within a reasonable time. If the
request is received more than 30 days after the agency mailed the default order
to the party or the party’s attorney (based on the service date of the order),
it is presumed that the request is not timely. The request shall state why the
party should be relieved of the default order. If the request is allowed by the
agency, it shall enter an order granting the request and schedule the hearing
in due course. If the request is denied, the agency shall enter an order
setting forth its reasons for the denial.

(8) The agency shall notify a defaulting party of the
entry of a default order by mailing a copy of the order as required by ORS
183.470.

(9) Notwithstanding the provisions of this rule
relating to late requests for a hearing, no hearing may be held if the timing
of the request would cause the agency to miss the statutory deadlines
established for the conduct of hearings in ORS 260.232(4) or 260.995(6).

(1) If a party wishes to contest the allegations in the
charging document, but does not wish to request an in person or telephone
hearing, the party may submit notarized testimony in lieu of a hearing.

(2) The notarized testimony must be filed with the
Agency not later than the deadline to request a hearing stated in the charging
document.

(3) The notarized testimony must:

(a) Include an admission or denial of each factual
matter alleged in the charging document and a statement of each relevant
defense to the allegations, including any relevant mitigating circumstance. A
general denial is not sufficient. Notarized testimony not including the
information required by this rule may be disregarded and a notice of default
may be issued in accordance with OAR 165-001-0025 as if no notarized testimony
had been filed.

(b) Include a signed and completed Hearing Request
Form.

(c) Be notarized by a commissioned Notary Public.

(4) After the party submits notarized testimony, the
Agency may submit notarized testimony and any exhibits to the Office of
Administrative Hearings and to the individual who submitted notarized
testimony. If the Agency submits notarized testimony, it will be transmitted
via e-mail to the Office of Administrative Hearings and the party. The Agency
may mail its notarized testimony to the party’s last known address if the
party’s e-mail address is unknown or the e-mail is returned as undeliverable.

(5) The party may, but is not required to, respond to
the Agency testimony by submitting rebuttal notarized testimony.

(a) Rebuttal notarized testimony is limited to issues
raised in the original notarized testimony and the Agency’s testimony.

(b) Rebuttal notarized testimony must be notarized by a
commissioned Notary Public.

(c) The rebuttal notarized testimony must be received
by the Agency not later than five business days from the date of service of the
Agency’s testimony (the date the testimony was e-mailed or mailed).

(d) The notarized testimony hearing record is deemed closed
the day after the deadline for the person to submit rebuttal testimony.

(6) If a person submits notarized testimony in lieu of
requesting an in person or telephone hearing, the person is waiving their right
to an in person or telephone hearing.

Rule
Caption: Amendment of Secret Ballot Waiver
Form and Process to Allow for Receipt by Email.

Adm.
Order No.: ELECT 2-2012

Filed with Sec. of
State: 1-3-2012

Certified to be
Effective: 1-3-12

Notice Publication
Date: 12-1-2011

Rules Amended: 165-007-0300

Subject: This rule is proposed for amendment to incorporate
changes made by the 2011 Legislative Assembly that allow a long term absent
elector who is serving in or has been discharged for not more than 30 days from
the Armed Forces or the Merchant Marine to use to waive their right to a secret
ballot when casting a ballot using electronic mail.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-007-0300

Facsimile Vote Secret Ballot
Waiver Form

(1) The Secretary of State designates form SEL 531,
Email or Facsimile Vote Secret Ballot Waiver Form, as the form to be used by a
long term absent elector who is serving in or has been discharged for not more
than 30 days from the Armed Forces or the Merchant Marine when casting a ballot
using electronic mail or a facsimile machine.

(2) The ballot will not be counted unless the completed
SEL 531 is received in the office of the county clerk not later than 8 pm on
the day of the election, accompanied by a return identification envelope,
transmitted by electronic mail or facsimile, containing the signature of the
elector and the signature is matched against the signature on the elector’s
most current voter registration card.

(3) County clerks shall incorporate into their Security
Plan, required to be filed with the Secretary of State not later than January
31st of every year, methods for ensuring the secrecy of ballots cast using
electronic mail or a facsimile machine to the greatest extent possible.
Acceptable methods include but are not limited to:

Rule
Caption: Repeal of Rule Regarding Multiple
Political Party Designations on General Election Ballot.

Adm.
Order No.: ELECT 3-2012

Filed with Sec. of
State: 1-3-2012

Certified to be
Effective: 1-3-12

Notice Publication
Date: 12-1-2011

Rules Repealed: 165-007-0320

Subject: This rule is being repealed because some of the
specific circumstances that led to the rule’s adoption have changed. Changes in
voting systems have occurred in some counties in the state. Additionally,
questions remain as to whether any county will be able to strictly comply with
the cross-nomination law as written. The Secretary of State will be seeking
legislative changes to the cross-nomination law during the 2012 legislative
session.

Rules Coordinator: Brenda Bayes—(503) 986-1518

Rule
Caption: Updating Candidate and Minor Party
Manuals and Procedures for Filling a Legislative Vacancy.

Adm.
Order No.: ELECT 4-2012

Filed with Sec. of
State: 1-3-2012

Certified to be
Effective: 1-3-12

Notice Publication
Date: 12-1-2011

Rules Amended: 165-010-0005, 165-010-0060

Rules Repealed: 165-010-0085

Subject: OAR 165-010-0005 is proposed for amendment to
designate the 2012 Candidate’s Manual and associated forms as the procedures
and forms used by candidates filing and running for elected office. In addition
this rule designates the 2012 Minor Political Party Formation and Candidate
Nomination Manual as the procedures and forms to be used to form a Minor
Political Party and nominate candidates for elective office.

OAR 165-010-0060
is proposed for amendment to incorporate changes made to the forms that a
nominee to fill a legislative vacancy would file indicating their willingness
to serve if appointed.

OAR 165-010-0085
is proposed for repeal because it has been incorporated into OAR 165-010-0060.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-010-0005

Designating the State Candidates
Manuals, County Candi­date’s Manual and Forms

(1) The Secretary of State designates the 2012
Candidate’s Manual and associated forms as the procedures and forms to be
used by candidates filing and running for elective office.

(2) The Secretary of State designates the 2012 Minor
Political Party Formation and Candidate Nomination and associated forms as
the procedures and forms to be used to form a Minor Political Party and
nominate candidates for elective office.

[Publications: Publications
referenced are available from the agency.]

Procedure for Conduct of Meeting
to Fill Vacancy in Legis­lative Assembly

The following procedures govern the conduct of a meeting of a
county court or board of commissioners (hereafter, county governing body(ies))
to fill a vacancy in the Legislative Assembly These meeting procedures apply to
appointments made under either ORS 171.060(1) (vacancy to be filled by nominee
affiliated with a major political party) or ORS 171.060(2) (vacancy need not be
filled by member of a particular major political party).

(1) A meeting of the members of the county governing body(ies)
shall convene at the time designated by the Secretary of State. If the
legislative district includes more than one county, the Secretary of State
shall also name the temporary chairperson for the meeting and designate its
location, which shall be within the legislative district. The Secretary of
State shall also notify the county governing body(ies) of the nominees and of
the number of votes apportioned to each member of the county governing
body(ies) under ORS 171.062 and 171.064.

(2) The chairperson conducting the meeting shall open the meeting
at the time designated by the Secretary of State. The chairperson shall
announce that the purpose of the meeting is to appoint a person to fill the
vacancy in the Legislative Assembly. If applicable, the appointment will be
made from the list of nominees from the major political party as furnished by
the Secretary of State.

(3) Members of the county governing body eligible to vote on the
selection are those physically or electronically present at the meeting, who
are currently holding office by election or appointment.

(4) The county governing body(ies), in making its determination,
may allot time for interviewing nominees or applicants and for other pertinent
deliberations prior to voting.

(5) The vote shall be taken in a manner specified by a majority of
those present and eligible to vote on the selection. The person receiving the
highest number of votes shall be the appointee. However, in any case, the vote
of each member of the governing body(ies) shall be recorded and included in the
written statement required by ORS 171.060(3).

(6) The Secretary of State hereby adopts form SEL 145, Statement
of Nominee’s Willingness to Serve, as the form to be used to accept a
nomination to fill a legislative vacancy. The form shall contain:

(a) Nominee’s name;

(b) Office and district number, if any, for which candidate would
accept appointment;

Subject: OAR 165-012-0005 is proposed rule amendment designates
the 2012 Campaign Finance Manual and associated forms as the procedures and
forms used for compliance with campaign finance regulations.

OAR 165-012-0240
is proposed for amendment to add reference to petition committees, as well as
incorporate technical changes made by the 2011 Legislative Assembly to the
process of administratively discontinuing a political committee.

OAR 165-012-0060
is proposed for repeal because the 2011 Legislative Assembly repealed ORS
260.735 and 260.737 requiring slate mailer organizations to file a statement of
organization and the requirement of specific disclosures on a slate mailer.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-012-0005

Designating the Campaign Finance
Manual and Forms; Late Penalty Matrix

(1) Pursuant to ORS 260.156, the Secretary of State
designates the 2012 Campaign Finance Manual and associated forms as the
procedures and guidelines to be used for compliance with Oregon campaign
finance regulations.

[Publications: Publications and
Forms referenced are available from the agency.]

(1) The Elections Division may administratively
discontinue a political or petition committee when:

(a) The committee has not filed any transactions under
ORS 260.057 for one calendar year; and

(b) The committee’s ending cash balance reflected in
ORESTAR is not more than $3000.

(2) Not later than 30 days before administratively
discontinuing a committee under this section, the Elections Division shall
attempt to notify the committee of the proposed discontinuation.

(a) For a candidate committee:

(A) By first class mail sent to the mailing address
reported on the most recent Statement of Organization for the candidate and by
first class mail to the most recent mailing address for the candidate reported
in the Oregon Centralized Voter Registration System. If both addresses are the
same, only one letter shall be sent; and

(B) By first class mail to the mailing address reported
on the most recent Statement of Organization for the treasurer, if applicable.

(b) For a political committee notice will be sent by
first class mail sent to the mailing address reported on the most recent
Statement of Organization for the treasurer and by first class mail to the most
recent mailing address for the treasurer reported in the Oregon Centralized
Voter Registration System. If both addresses are the same, only one letter
shall be sent.

(c) For a petition committee:

(A) By first class mail sent to the mailing address
reported on the most recent Statement of Organization for the chief petitioner
and by first class mail to the most recent address for the chief petitioner in
the Oregon Centralized Voter Registration System. If both addresses are the
same, only one letter shall be sent; and

(B) By first class mail to the mailing address reported
on the most recent Statement of Organization for the treasurer, if applicable.

(3) The notice shall inform the committee that it will
be discontinued by the Elections Division unless the committee informs the
Elections Division of reasons why the committee does not meet the criteria of
this rule for administrative discontinuation. The committee must inform the
Elections Division in writing of the reasons not later than 20 days after the
service date of the letter. The written notice shall also include:

(a) Notification that the statement of organization
will be administratively discontinued 30 days from the date of the letter; and

(b) The applicable reasons for discontinuation listed
in subsection (1) of this section.

Subject: OAR 165-013-0010 is proposed for amendment to remove
from the Penalty Matrix for Campaign Finance Civil Penalty Election Law
Violation the penalty for a slate mailer organization to file a statement of
organization. This provision was repealed by the 2011 Legislative Assembly.

OAR 165-013-0020
is proposed for amendment to clarify the penalty for violating ORS 260.567 to
$250 for each occurrence.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-013-0010

Penalty Matrix for Other Campaign
Finance Violations

(1) This penalty matrix applies to civil penalties for
campaign finance violations not covered by the penalty matrices in the Campaign
Finance Manual.

(2)(a) Spot Check Review. The Secretary of State,
Elections Division, will hold exempt from disclosure as a public record any
bank account number(s), credit card number(s) or social security number(s)
received as required documentation in response to a request for documentation
necessary to perform a spot check review in accordance with ORS 260.215(3).

(b) If a committee fails to provide documentation or
provides insufficient documentation in response to a request for documentation
necessary to perform a spot check review, each omitted or insufficient item is
a violation of ORS 260.055(3).

(c) If the committee fails to provide sufficient
documentation for a transaction by the deadline stated in the first spot check
review letter, the Elections Division shall send a second review letter
notifying the committee which transaction(s) lack sufficient documentation. The
second review letter shall provide the committee a deadline for response.

(d) Omitted or insufficient information submitted after
the deadline provided in the second review letter, but prior to the deadline
for a candidate or treasurer to request a hearing will result in a 50% per item
reduction of the penalty. If a public hearing is requested, the omitted or
insufficient documentation may be submitted up to the date of the hearing. In
such an event, the candidate or treasurer will be entitled to a 50% per item
reduction of the assessed penalty.

(e) The candidate or treasurer of record at the time
the first spot check review letter is generated, along with the candidate if
applicable, is responsible for submitting documentation for all transactions
selected in the spot check review.

(f) For the purpose of imposing a civil penalty for a
violation of ORS 260.055(3), the candidate of the principal campaign committee;
and the treasurer of a political or petition committee are the parties
responsible for the payment of any civil penalty.

(3) Mitigating Circumstances. Except as specifically
provided in paragraph (2)(d), the only mitigating circumstances that will be
considered in a campaign finance violation covered by this rule include:

(a) The violation is a direct result of a valid
personal emergency of the candidate or treasurer. A valid personal emergency is
an emergency, such as a serious personal illness or death in the immediate
family of the candidate or treasurer which caused the violation to occur. Personal
emergency does not include a common cold or flu, or a long-term illness where
other arrangements could have been made. In this case, independent written
verification must be provided;

(b) The violation is the direct result of an error by
the elections filing officer;

(c) The violation is the direct result of
clearly-established fraud, embezzlement, or other criminal activity against the
committee, committee treasurer or candidate, as determined in a criminal or
civil action in a court of law or independently corroborated by a report of a
law enforcement agency or insurer or the sworn testimony or affidavit of an
accountant or bookkeeper or the person who actually engaged in the criminal
activity;

(d) The violation is the direct result of fire, flood
or other calamitous event, resulting in physical destruction of, or
inaccessibility to, committee records. (“Calamitous event” means a phenomenon
of an exceptional character, the effects of which could not have been
reasonably prevented or avoided by the exercise of due care or foresight);

(e) The violation is the direct result of failure of a
professional delivery service to deliver documents in the time guaranteed for
delivery by written receipt of the service provider (this does not include
delivery by fax); or

(f) The violation is the direct result of negligent
record keeping by a former treasurer. Former treasurer refers to the person who
was the treasurer of record at the time the transaction was filed or should
have been filed.

(4)(a) Penalty Matrix. These mitigating circumstances
may be considered in reducing, in whole or in part, the civil penalty. If the
violation is a direct result of an error by the elections filing officer, the
violation is waived and no penalty is assessed.

(b) Omitted or insufficient information for a violation
of ORS 260.039(4), 260.042(4) or 260.118(3) submitted prior to the deadline for
a candidate or treasurer to request a hearing will result in a 50% reduction of
the penalty. If a public hearing is requested, the omitted or insufficient
information may be submitted up to the date of the hearing. In such an event,
the candidate or treasurer will be entitled to a 50% reduction of the assessed
penalty.

(c) For purposes of determining penalty amounts for
violations of campaign finance violations covered by this rule Appendix A of
this rule will apply. [Appendix not included. See ED. NOTE.]

(1)(a) This penalty matrix applies to civil penalties
for violations of election laws that are not covered by the penalty matrices in
the Campaign Finance Manual (late and insufficient campaign finance reports and
new transactions to campaign finance reports), or other campaign finance
violations as outlined in 165-013-0010.

(b) The penalty amount will be calculated against the
same person, candidate or entity as described below for a period of four years
from the date the violation occurs, for any election law violation, other than
campaign finance violations covered in the penalty matrices in the Campaign
Finance Manual and other campaign finance violations as outlined in
165-013-0010. In determining whether the offense is to be considered against
the same person, candidate or entity, the following factors are to be
considered:

(A) A person is considered the same candidate,
regardless of the office(s) for which the person runs within this state, or
whether there is a lapse in time between candidacies.

(B) A political committee is considered the same,
regardless of who the treasurer is, or if the political committee has changed
names but is established by the same group of persons.

(C) The same individual.

(D) One occurrence is considered one violation.

(E) Not withstanding (F) or (G), if a violation is the
first on record for the person, and multiple occurrences of the same statutory
provision are described in an election law complaint, the occurrences will be
combined (to be considered as one violation) and considered a first violation
of the statutory provision, except in such cases where specific circumstances
warrant separating the occurrences to impose fines for each violation. This
would be appropriate when different persons were affected by the election law
offense. Each subsequent occurrence of violation of the same statutory
provision after the issuance of a notification letter or a determination of
election law violation, within the four-year cycle, may be considered as
separate violations.

(F) Violations of Article IV, Section 1(b) will be
calculated by deeming each individual signature sheet that contains signatures
that were collected in violation of Section 1(b) as a single occurrence with a
minimum civil penalty of $2,500.

(G) Violations of ORS 260.569, will be calculated by
deeming each individual signature sheet that contains a signature a violation
of ORS 260.569 or each signed voter registration card in violation of ORS
260.569 as a single occurrence with a minimum civil penalty of $100.

(2) Mitigating Circumstances: The burden is on the
person alleged to have committed the election law violation to show that a
mitigating circumstance exists and caused the election law violation. The only
mitigating circumstances which will be considered, if applicable to the
specific situation, include:

(a) The violation is a direct result of a valid
personal emergency of the involved person(s). A valid personal emergency is an
emergency such as a serious personal illness or death in the immediate family
of the involved person(s). Personal emergency does not include a common cold or
flu, or a long-term illness where other arrangements could have been made. In
this case, independent written verification must be provided;

(b) The violation is the direct result of an error by
an elections officer;

(c) The violation is the direct result of fire, flood
or other calamitous event, resulting in physical destruction of, or
inaccessibility to, any records required to be kept to document compliance with
Oregon election law. (“Calamitous event” means a phenomenon of an exceptional
character, the effects of which could not have been reasonably prevented or
avoided by the exercise of due care or foresight);

(d) The violation of ORS 260.432 occurred after a
publication produced and distributed by a governing body relating to a ballot
measure was reviewed by the governing body’s legal counsel before its
distribution. The legal counsel must have advised the governing body in writing
or by email that the draft publication was impartial information that the
governing body could legally produce and distribute;

(e) The violation of ORS 260.432 occurred after a
publication produced and distributed by a governing body relating to a ballot
measure was reviewed by the Secretary of State’s office, Elections Division.
The Secretary of State must have advised the governing body in writing that the
publication as drafted was impartial information that the governing body could
legally produce and distribute or for which suggestions were provided towards
the goal of assuring the publication was impartial information regarding the
ballot measure. If the Secretary of State issued an advice letter with
suggested changes, the governing body must have substantially followed the
advice provided. However, this mitigating factor may be disallowed, even if
such an advice letter was issued, if a complaint and investigation indicates
sufficient evidence that the public body presented inaccurate or unbalanced information,
not within the purview of this office to have knowledge of prior to the
complaint, which has the effect of promoting or opposing the adoption of the
measure;

(f) The violation of ORS 260.432(2) occurred, but the
public employee had voiced their objection to the person who coerced, commanded
or required the employee to perform the prohibited campaign activity during
their work time. Despite the stated objection, the person was still required to
perform the activity that violated ORS 260.432(2); or

(g) The violation of ORS 260.432(2) occurred when a
supervisor asked the public employee to perform the prohibited campaign
activity, consisting of clerical tasks, as a part of the public employee’s job
duties during work time. A “request” made by a supervisor is considered a
command or requirement within the meaning of ORS 260.432(1). If the violation
involves a written document, the public employee performed clerical tasks only
and is not the author of the material.

(3)(a) Penalty Matrix. These mitigating circumstances
may be considered in reducing, in whole or in part, the civil penalty. If the
violation is a direct result of an error by an elections officer, the violation
is waived and no penalty is assessed.

(b) For purposes of determining penalty amounts for
violations of non-campaign finance civil penalty election law violations,
Appendix B of this rule will apply. [Appendix not included. See ED. NOTE.]

Subject: This proposed rule amendment designates the 2012 State
Initiative and Referendum Manual; 2012 Recall Manual; and the 2012 County, City
and District Initiative and Referendum Manual and associated forms as the
procedures and forms used to be used or the initiative, referendum and recall
processes. In addition, this proposed rule amendment designates the 2012
County, City and District Referral Manual to be used for the local referral
process.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-014-0005

Designating the Initiative,
Referendum and Recall Manuals and Forms

(1) The Secretary of State designates the 2012 State
Initiative and Referendum Manual and associated forms as the procedures and
forms to be used for the state initiative and referendum process.

(2) The Secretary of State designates the 2012
Recall Manual and associated forms as the procedures and forms to be used
for the recall process.

(3) The Secretary of State designates the 2012
County, City and District Initiative and Referendum Manual and associated
forms as the procedures, except where state law permits the procedure to be
otherwise under local charter or ordinance, and forms to be used for the county
initiative and referendum process.

(4) The Secretary of State designates the 2012
County, City and District Referral Manual and associated forms as the
procedures, except where state law permits the procedure to be otherwise under
local charter or ordinance, and forms to be used for the local referral
process.

[Publications: Publications
referenced are available from the agency.]

Subject: This proposed rule amendment would update the list of
sufficient circulator certification to allow a circulator who has crossed out
their own signature and certification date to re-sign and re-date the circular
certification.

Rules Coordinator: Brenda Bayes—(503) 986-1518

165-014-0270

Circulator Certification

(1) The purpose of this rule is to incorporate into
administrative law previously enforced standards on what constitutes a
sufficient circulator certification on Initiative, Referendum, Recall, and Candidate
Nominating petitions.

(2) A petition signature sheet will be rejected for
insufficient circulator certification if:

(a) No signature whatsoever appears below the
certification;

(b) No date appears next to circulator’s signature or
the date is crossed out;

(c) The date of the circulator certification is earlier
than the date of the electors’ signatures, unless the circulator and the only
signer are the same person;

(d) Original date is crossed out, and a new date is provided,
but the circulator failed to re-sign;

(e) Any part of the original date is overwritten with a
different date;

(f) Date information is insufficient or ambiguous. Date
must be provided in month, day, year order if written in all numeric
characters;

(g) The original signature of a circulator has been
crossed out, and a different circulator’s signature is inserted;

(h) Two individuals sign and date as circulator, unless
the only signers and the circulators are the same people;

(i) White out appears on the signature or date line;

(j) The circulator has signed using only initials,
unless the circulator’s use of initials as a signature is verified by exemplar
under paragraph (5) of this rule;

(k) The circulator has signed using a signature stamp,
unless use of a signature stamp has been approved under ORS 246.025;

(l) Circulator’s signature is photocopied,
carbon-copied, or otherwise appears on the face of the document to be a
replicated and not original signature except as provided for in ORS 250.043;

(m) Signature, printed name, and address are all
illegible;

(n) Signature alone is illegible, unless the
circulator’s use of the apparently illegible signature is verified by exemplar
under paragraph (5) of this rule;

(o) Circulator’s signature is in printed script rather
than cursive script, unless the circulator’s use of a printed signature is
verified by exemplar under paragraph (5) of this rule;

(p) If for any other reason, from the face of the
signature sheet, the circulator’s identity cannot be determined or it otherwise
cannot be determined that the circulator executed the certification after
witnessing the electors’ signatures.

(3) If a petition signature sheet contains elector
signatures dated both on or before the date of the circulator’s effective certification
and after the date of the circulator’s effective certification, the signature
sheet will be accepted with regard to the elector signatures dated on or before
the date of the certification, but elector signatures dated after the date of
the certification will not be accepted.

(4) The following defects in the circulator
certification will not result in rejection of the signature sheet:

(a) The circulator’s signature appears on the printed
name line instead of on the signature line;

(b) Signature consists of full last name and at least
the first name initial;

(c) The circulator has signed and dated the
certification, but has not provided an address or printed name; or

(d) The circulator has re-signed and re-dated the
certification.

(5) If a preliminary determination is made under
paragraph (2)(j), (n) or (o) of this rule that a certification is insufficient,
the certification signature may be verified by exemplar in the following
manner:

(a) If the circulator is required to be registered
under ORS 250.048 Section 2 the Elections Division will compare the
certification signature only to the circulator’s signature supplied by the
circulator on the circulator’s SEL 308, Circulator Registration. If the
certification signature matches the signature on the SEL 308 that was in effect
at the time that the signature sheet was certified, the petition signature
sheet will be accepted. If the certification signature does not match the
signature on the SEL 308 that was in effect at the time that the signature sheet
was certified, the petition signature sheet will be rejected for insufficient
certification. A certification signature may consist at a minimum of a first
name initial and full last name and still be accepted even if the signature on
the circulator’s most recent SEL 308 contains a full first name and full last
name.

(b) For circulators not required to be registered under
ORS 250.048, the Elections Division will compare the certification signature to
the circulator’s current Oregon voter registration card signature, if
available. If the certification signature matches the voter registration
signature, the petition signature sheet will be accepted.If the certification signature does not
match the voter registration signature, the petition signature sheet will be
rejected for insufficient certification.

(c) If the circulator is not required to be registered
under ORS 250.048 and an Oregon voter registration card bearing the
circulator’s signature is not available as an exemplar, the Elections Division
will compare the certification signature to an alternative exemplar filed with
the Elections Division or retained on file by the Elections Division under
section (6) of this rule. If the certification signature does not match the
alternative exemplar provided or retained under section (6) and (7) of this
rule, the petition signature sheet will be rejected for insufficient
certification.

(d) If the circulator is not required to be registered
under ORS 250.048 and an Oregon voter registration card bearing the circulator’s
signature is not available as an exemplar, and an alternative exemplar has not
been filed with or retained on file by the Elections Division under section (6)
and (7) of this rule, the Elections Division will notify the chief petitioner
or the chief petitioner’s designee by telephone and electronic mail, if
available, and provide the chief petitioner or designee an opportunity to
submit an alternative exemplar of the circulator’s signature.

(A) If an alternative exemplar is requested by the
Elections Division not later than the 20th day after signatures are submitted
for verification, the chief petitioners or the chief petitioner’s designee must
provide the alternative exemplar within 2 days of notification for the
alternative exemplar to be considered.

(B) If an alternative exemplar is requested by the
Elections Division after the 20th day after signatures are submitted for
verification, the chief petitioners or the chief petitioner’s designee must
provide the alternative exemplar within 1 day of notification for the
alternative exemplar to be considered.

(C) The alternative exemplar must be a signature on an
official government-issued document such as a driver’s license or passport, and
must have been executed before the date of the attempted certification of the
petition signature sheet. If the certification signature matches the
alternative exemplar, the petition signature sheet will be accepted. If the
certification signature does not match the alternative exemplar, the petition
signature sheet will be rejected for insufficient certification.

(D) The alternative exemplar may be physically
delivered to the Elections Division or may be delivered by facsimile
transmission or electronic mail. If delivered by electronic mail, the document
must be reproduced in .gif or .pdf format. The alternative exemplar must be
received at the office of the Secretary of State not later than 5 p.m. of the
day it is due.

(6) Chief petitioners may submit alternative exemplars
of petition circulators’ signatures at the same time they submit petition
signature sheets for signature verification. The alternative exemplar must
comply with the requirements of paragraph (5)(c)(C) of this rule. When
submitting alternative exemplars, chief petitioners must provide a list of
circulators for whom they are submitting alternative exemplars. If no list
accompanies the alternative exemplars submitted under this section, those
alternative exemplars will not be accepted or used to compare the circulator’s
signature to the certification. If an alternative exemplar is omitted from the
list, that alternative exemplar will not be accepted or used to compare the
circulator’s signature to the certification. Chief petitioners may still be
offered the opportunity to submit alternative exemplars under paragraph (5)(c).

(7) Alternative exemplars received and accepted by the
Elections Division under paragraphs (5) and (6) of this rule, will be retained
on file for two years from the date of receipt.

Subject: This rule is proposed for repeal because the contents
of the City Elections Manual and the District Elections Manual as well as
associated forms have been incorporated into either in the 2012 Candidates
Manual or the 2012 County, City and District Initiative and Referendum Manual
which are adopted under OAR 165-010-0005 and OAR 165-014-0005.

Rules Coordinator: Brenda Bayes—(503) 986-1518

Notes1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.